Reformations Needed on Canadian Surrogacy Law

Education and Advocacy Canadian surrogacy law needs to be updated to reflect the evolution of the Canadian family, while still respecting the ethical concerns of the industry.

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In Canada, federal law prohibits the purchase of eggs and sperm from donors (or anyone acting on behalf of donors), the purchase or sale of embryos, and payment to anyone arranging the services of a surrogate or to the surrogate herself. In all cases, reimbursement of expenses is permitted with receipts. However, determining what types of expenses that can be claimed is stil under consideration by Health Canada. The consequences for breaching these ill-defined prohibitions are dire, ranging up to a maximum fine of $500,000 or imprisonment for up to 10 years.

The Canadian Fertility and Andrology Society (CFAS) believes that it is time to update the Assisted Human Reproduction Act and replace the harsh penalties with a program that will allow for reasonable and regulated compensation of donors and surrogates. CFAS is of the opinion that a system of reasonable compensation is appropriate, if conducted under clear, evidence-based Canadian standards of care. The health and safety of the donors, surrogates, and intended parents must be in mind.

There is a need to improve access to donors and surrogates while protecting those same people. Many Canadians need help from a third party in order to build their families, including infertile men and women, cancer survivors, individuals who carry severe or even fatal genetic disorders who wish to break the chain of inheritance, same-sex couples, and single men and women. The number of Canadians willing to help on an altruistic basis falls far short of the need. This leaves many Canadians either waiting indefinitely for an opportunity that may never come, proceeding in a manner that violates the law, or resorting to other means such as cross-border reproductive tourism where patients sometimes incur unreasonable risks. Many pay for and import donor gametes from foreign countries where compensation is legal. This situation is far from ideal.

The CFAS believes there is a “made in Canada” solution — one that will respect the ethical concerns around the commodification of reproduction while protecting the health and safety of all concerned and helping to fill an important need. As Health Canada drafts new regulations pertaining to the AHRA, it recognizes that the Act does not adequately address new technologies like gene editing, which presents incredible opportunities — and challenges — for society. We are hopeful that they will also recognize the need to update laws to reflect the evolution of the Canadian family, and the needs of all parties involved, by allowing a system that permits reasonable compensation for donors and surrogates.

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